Pick a date, any date

It might be a small thing next to the likes of Weaver v L&Q, but Hussain v Bradford Community Housing Limited & Kauser [2009] EWCA Civ 763 is worth attention on a technical point.

Hussain had a weekly periodic tenancy has joint tenant with Kauser. The weekly period ended on a Friday of each week. The tenancy specified 28 days notice. Following the breakdown of the relationship, BCH and Kauser issued Notice to Quit with effect from ‘the last Sunday of the month or the last day of the periodic tenancy after four weeks’. The landlord also wrote to Kauser saying that if an offer of alternative accommodation was not made in time, the tenancy would be held over for her.

Hussain submitted that:
1. The NTQ contained two alternative dates, was therefore ambiguous, and should be construed contra proferendum such that the Notice to Quit was given for the Sunday (and presumably was therefore invalid).
2. Alternatively he and Kauser had agreed to vary the notice, as evidenced by the landlord’s letter and the rent being paid up to the last Sunday of the month.

The Court held
1. While the NTQ gave two possible dates, only one complied with the clause in the tenancy. There was no basis in the tenancy to exclude the ‘catch-clause’ or saving clause which was present precisely to ensure that the tenancy was ended at the end of a period of the tenancy. Thus the NTQ took effect on a Friday.
2. The variation was hard to accept. It had not been raised at the trial below and lacked factual support – there was no evidence on rent payments, except for the usual payments in advance. Payment of rent did not affect a valid Notice to Quit. The landlord’s letter to Kauser was no more than an indication of what is was prepared to do and did not vary the NTQ. Kauser did not need Hussain’s consent for service of NTQ.
Appeal dismissed.

On the saving clause, this is not a surprise. Dates expressed as an alternative, if one does accurately coincide with the end of a period of the tenancy have stood before and would be hard to see as ambiguous.

I’m less sure about the variation point. Although the note does not give the full text of the landlord’s letter, if it proposed that Kauser’s tenancy would continue if alternative accommodation was not available, then it is hard to see how Kauser’s tenancy could be continued without waiver of the NTQ on the joint tenancy. It appears that in the event, alternative accommodation was found for Kauser, so this may arguably have been a offer of a new tenancy that was not taken up – without the details it is hard to tell – but I would be concerned if what could have been a statement that the tenancy, for Kauser at least, would continue was dismissed out of hand as not capable of waiving the NTQ on Hussain’s tenancy. A joint tenancy ends for both or neither, surely.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in assured-tenancy, Housing law - All, Possession and tagged , , , , .

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